DISTRICT COURT, Douglas County, Colorado

DATE FILED: February 14, 2022 6:42 PM

Douglas County Justice Center FILING ID: 385C28251FAC8
4000 Justice Way CASE NUMBER: 2022CV30071
Castle Rock, Colorado 80109
(720) 437-6200

▲COURT USE ONLY▲

ROBERT C. MARSHALL,
v.

Case Number:22-cv-30071
DOUGLAS COUNTY BOARD OF EDUCATION;
MICHAEL PETERSON in his official capacity as a
member thereof; Div. 5
REBECCA MYERS in her official capacity as a member
thereof;
KAYLEE WINEGAR, in her official capacity as a
member thereof; and,
CHRISTY WILLIAMS in her official capacity as a
member thereof.

Attorneys for Plaintiff:

Steven D. Zansberg, CO Bar # 26634

Law Office of Steven D. Zansberg, L.L.C.
100 Fillmore Street, Suite 500
Denver, CO 80206
(303) 385-8698
[email protected]

Eric R. Coakley, CO Bar # 34238

COAKLEY, LLC
2373 Central Park Blvd. - Suite 100
Denver, CO 80238
Tel. (303)500-1778
[email protected]
FIRST AMENDED
VERIFIED COMPLAINT
 Plaintiff Robert C. Marshall, by and through his undersigned ounsel, hereby

submits this First Amended Verified Complaint as follows:

INTRODUCTION
“[T]he formation of public policy is public business
and may not be conducted in secret.”
§ 24-6-401, C.R.S. (2021).

In November 2021, voters elected four new members to the seven-member Board of

Education (BOE) of the Douglas County School District (DCSD). Consistent with their

campaign messaging, the four newly elected members have charted a new direction for the

DCSD, including dramatically revising its equity policy, abandoning its masking mandate,

and, on January 28, 2022, terminating the employment of the District’s Superintendent by

delivering an ultimatum that either he resign immediately or accept the fact that four

members of the board had already decided to fire him.

This suit does not address the substance of those policy changes. Instead, it is

exclusively about the process by which important public policies – directly affecting some

64,000 students enrolled in DCSD schools, and their families – is made. That process is

governed by clear and unambiguous Colorado law: the Colorado Open Meetings Law

(COML). That law, whose declaration of statewide policy is quoted above, requires that any

time three or members of a “local public body” like the BOE plan to discuss public business,

“in person, by telephone, electronically, or by [any] other means of communication.” they

must notify the public in advance and allow the public to observe that discussion in real time.

§ 24-6-402(2)(b), C.R.S. (2021).

The four newly elected BOE members have apparently been acting upon the ill-
 informed advice of the private attorney they hired that so long as they conducted their

meetings in a series of “two at a time” discussions, (e.g., A-B, B-C, and C-D <or> A-B, A-C,

and A-D) the collective, cumulative discussion of public business among all four members

would not constitute a “meeting” subject to COML. The new BOE members apparently also

mistakenly believe they are only prohibited from taking “formal action” outside of a public

meeting, but that they are otherwise free to meet privately and decide to terminate the

employment of a DCSD employee, and to so notify that employee.

Both of those positions are incorrect. Colorado’s Supreme Court has declared that “the

[Colorado Open Meetings Law] prohibits bad-faith circumvention of its requirements.”

Darien v. Town of Marble, 159 P.3d 761 (2006). This includes the intentional avoidance of

the quorum requirement by conducting “serial meetings” of less than three-at-a-time, a

practice that has been called a “walking quorum” or “constructive quorum” which numerous

courts have has been found to violate other states’ open meetings laws. 1 Furthermore, it is

clear that once an unlawful secret discussion of public business among three or more members

1
See, e.g., Del Papa v. Board of Regents, 956 P.2d 770 (Nev. 1998) (holding that a meeting
subject to the state open meetings law occurs when a quorum of a public body uses “serial
electronic communication to deliberate toward a decision or to make a decision on any matter
over which the public body has supervision, control, jurisdiction or advisory power.”); State
ex rel. Cincinnati Post v. Cincinnati, 668 N.E.2d 903 (Ohio 1996) (holding that a city
manager’s series of three back-to-back meetings with groups of council members to discuss a
proposal for a new sports stadium violated the state open meetings law); Hickel v. Southeast
Conference, 868 P.2d 919 (Alaska 1994) (holding that the state statute was violated when
“board members had one-on-one conversations with each other, in which they discussed
reapportionment affairs and districting preferences, and solicited each other’s advice”);
Stockton Newspapers, Inc. v. Redevelopment Agency, 214 Cal. Rptr. 561 (Cal. App. 1985)
(holding that a series of one-to-one telephone calls violated the state open meetings law); Hit
v. Mabry, 687 S.W.2d 791 (Tex. App. 1985) (holding that decisions reached by a school board
by way of private, informal telephone polls or conferences by board members violated the
state open meetings law).
of a local public body has taken place (even if no decision is made), that violation of the law

cannot be “cured” by subsequent corrective action .

Furthermore, any decision made outside of a duly noticed and open public meeting

cannot be “cured” thereafter by the mere “rubber stamping” of the earlier unlawful decision,

as the four new BOE members did at a public meeting hastily convened on February 4, 2022,

following this lawsuit’s filing.

This lawsuit asks this Court to find and declare that the Board of Education of DCSD

has violated the Open Meetings Law by engaging in discussion of public business among

three or more of its members without providing advance notice and the opportunity for the

public to observe those “meetings.” It also asks the Court to enjoin Defendants from

continuing to so violate the law, as they have publicly declared they intend to. Lastly, this

lawsuit asks the Court to declare null and void the decision made by four BOE members to

terminate the contract of the DCSD Superintendent Corey Wise on January 28, 2022, because

that decision was not made in compliance with the COML.

PARTIES

1. Plaintiff Robert C. Marshall is a resident of Douglas County Colorado

residing at 2 Jack Rabbit Place, Highlands Ranch, Colorado.

2. Defendant Douglas County Board of Education is a local public governmental

body in Douglas County with a place of business at 620 Wilcox Street, Castle Rock,

Colorado.

3. Defendant Michael Peterson is a member of the Douglas County Board of

Education.

4. Defendant Rebecca Myers is a member of the Douglas County Board of

 Education.

5. Defendant Kaylee Winegar is a member of the Douglas County Board of

Education.

6. Defendant Christy Williams is a member of the Douglas County Board of

Education.

JURISDICTION AND VENUE

7. Jurisdiction is proper in this Court pursuant to C.R.S. § 24-6-402(9).

8. Venue is proper in the Judicial District Court for Douglas County pursuant to

C.R.C.P. 98(b)(2) because all defendants are public officials and a local public body whose

actions giving rise to this First Amended Complaint occurred in Douglas County.

GENERAL ALLEGATIONS

9. On the morning of Friday, January 28, 2022, Defendants Michael Peterson and

Kristie Williams, acting in their official capacities as members of the BOE, spoke with the

Superintendent of DCSD, Corey Wise, and they presented him with an ultimatum: either he

notify them, by Wednesday, February 2, that he would resign his position immediately or,

four members of the BOE (a majority thereof) had decided that they would terminate his

contract.

10. Prior to the above conversation with Superintendent Wise, the BOE did not notice

any public meeting (whether to convene in executive session or otherwise) in which they

would discuss the possibility of terminating the Superintendent’s contract.

11. On Monday, January 31, 2022, three BOE members, David Ray, Susan Meek,

and Elizabeth Hanson, held a properly noticed meeting via Zoom. See
https://drive.google.com/file/d/1slHHaE-v8NOZ_jqg6gqnQZQEY-

by8MPg/view?usp=drivesdk (hereinafter “BOE Meeting 1/31/22”).

12. During that public meeting, each of the three board members recounted their

individual phone conversations with fellow board members the previous Friday, January 31.

Board member Elizabeth Hanson recounted that in her discussion with Board President

Peterson, he stated that:

He and [Board member] Christy Williams had conversations, as well

as conversations with the other new directors, that that they have
collectively decided that we need to take the District in a new
direction in regards to leadership.”

BOE Meeting 1/31/22 at 9:58 (emphasis added).

13. Board member Susan Meek recounted her phone conversation on January 31 with

Board President Peterson. She stated that he told her

“That he’s talked with the other [three] new board directors who are
ultimately concerned about the current direction of the district and
that a change is needed” . . . .

[Earlier that morning, he and director Williams] “asked Corey Wise

whether he’d consider moving up his retirement plan given that four
of the directors have made a decision to go in a different direction.”

BOE Meeting 1/31/22 at 11:02 (emphasis added).

14. Board member David Ray recounted his phone conversation with fellow Board

member Christy Williams, as follows: BOE members Peterson and Williams had, earlier that

day, spoken with Superintendent Wise and urged

“that he consider immediately resigning and that there were four

directors who were prepared to move forward with replacing him if
he chose not to resign” . . .

“there were four directors who want this to happen.”

BOE Meeting 1/31/22 at 15:46 – 16:00 and 18:55 – 19:03 (emphasis added).
 15. Prior to their series of discussions in which four board members collectively

discussed the possibility of terminating the Superintendent’s contract and collectively decided

to terminate that contract (either by obtaining his resignation or by firing), the BOE did not

post any public notice of those meetings; nor did they allow the public to attend and observe

their discussion of public business in real time.

16. On February 3, 2022, the BOE posted notice of a Special Meeting (outside of its

regularly-scheduled meetings) to be convened the following evening at which the Board

would discuss the Superintendent Corey Wise.

17. On February 4, 2022, prior to the publicly posted Special Meeting of the BOE, this

lawsuit was filed. It sought to enjoying the BOE from merely “rubber stamping” its earlier

unlawful decision to terminate the contract of Superintendent Wise. No action was taken by

the Court on Plaintiff’s Motion for Temporary Restraining Order or for Preliminary

Injunction before the BOE’s Special Meeting was completed.

18. At its Special Meeting on Friday, February 4, 2022, the Board voted (4-3) to

immediately terminate the employment contract of DCSD Superintendent Corey Wise. No

public comments were permitted prior to the BOE’s vote. Director Peterson explained that

“the people have [already] spoken” at the voting booth in November, so there was no need to

allow any public comment. Nor did the BOE provide any explanation for the Board

majority’s decision that related to any alleged performance deficiencies of Superintendent

Wise. It was clear to all observing the meeting that the four newly-elected members of the

BOEd were simply carrying through on the earlier-delivered ultimatum to Wise; because he

did not agree to voluntarily resign immediately, as they’d requested, they ratified their

earlier-communicated decision to terminate his contract without cause.

 19. During the BOE’s Special Meeting of February 4, 2022, Director Williams

defended the process by which the four majority members had collectively discussed and

decided to terminate Superintended Wise. Stating “I followed the law to the letter,” she

explained that she (and presumably the other three newly elected members of the Board)

were of the belief that no violation of the COML occurs when they collectively engage in

discussion of public business outside of public view through a series of conversations

between less than three members (“at no time was I with more than one other director at any

given moment.”). See https://www.youtube.com/watch?v=A4t2UsJKQdg at 26:29 – 26:43.

Given this serious misunderstanding of how the Open Meetings Law actually works, it is

foreseeable that the four majority members of the Board will continue to do so, unless

ordered by the Court to refrain from further violations of the COML.

FIRST CLAIM FOR RELIEF

For Declaratory Relief for Past Violations
of the Colorado Open Meeting Law
(All Defendants)

20. Plaintiff incorporates all other allegations in this complaint as if fully set forth

herein.

21. Defendants engaged in discussion of public business (concerning the termination

of the contract of the Superintendent) among three or more members of the BOE and such

collective discussions constitute a “meeting” within the definition and intention of the

Colorado Open Meetings Law.

22. As a result of their unlawful conduct, Defendants deprived Plaintiff, and those

similarly situated, of their rights under the Colorado OpenMeetings Law, to notice and an

opportunity to observe that discussion in real time.

 23. Plaintiff has suffered an injury in fact and has standing as set forth in §26-6-

402(9)(a), C.R.S.

24. Plaintiff is entitled to the entry of a Declaration and Finding by this Court

that the Defendants’ conduct was in violation of the Colorado Open Meetings Law.|

SECOND CLAIM FOR RELIEF

For Injunctive Relief Barring Further Violations
of the Colorado Open Meetings Law
(All Defendants)

25. Plaintiff incorporates all other allegations in this complaint as if fully set forth

herein.

26. Defendants have made clear that they believe that they do not violate the Open

Meetings Law when they collectively discuss public business among three or more Board

members, without public notice or public observance of the discussion, so long as they don’t

engage in simultaneous discussion among three or more of them.

27. Defendants therefore have indicated that they intend to continue the unlawful

practices described above, unless enjoined from doing so by this Court.

28. Plaintiff, and all other members of the public, who have rights of notice and

observation of such future “meetings” of the Board, will suffer irreparable injury if those future

violations are not enjoined.

29. Plaintiff is entitled to the entry of both preliminary and permanent injunctive relief

that precludes the BOE member defendants from further violations of the COML by discussion

of public business among three or more members without notice or an open meeting.
 THIRD CLAIM FOR RELIEF
for Relief Declaring Null and Void the Board’s Unlawfully Made Decision to
Terminate the Employment Contract of Superintendent Wise
(All Defendants)

30. Plaintiff incorporates all other allegations in this complaint as if fully set

forth herein.

31. Prior to January 28, 2022, Defendants made a decision, by a majority of the

Board, to terminate the employment contract of the Superintendent of DCSD, Corey Wise.

32. The above referenced decision of the Board was made without complying

with the provisions of the Colorado Open Meetings Law.

33. The Board’s public vote (4-3), in its Special Meeting of February 4, 2022,

to ratify its earlier decision to terminate the employment contract of Superintendent Wise, did

not “cure” the prior violation, but merely “rubber stamped” it. See Walsenburg Sand &

Gravel Co., Inc. v. City of Walsenburg, 160 P.3d 297 (Colo. App. 2007) (merely rubber-

stamping ina public meeting an earlier-made unlawful decision does not “cure” the violation);

Van Alstyn v. Housing Auth., 985 P.2d 97 (Colo. App. 1999) (same);

34. Plaintiff is entitled to a Declaration and Finding by this Court that the

Board’s decision (by four members) to terminate the Superintendent’s employment contract,

without cause, on January 28, 2022, was in violation of the Colorado Open Meetings Law and

is therefore null and void. § 24-6-402(9), C.R.S.; see also Rogers v. Bd. of Trustees for Town

of Fraser, 859 P.2d 284 286 (Colo App. 1993) (termination of a town employee that was done

outside of an open public meeting declared “null and void”); Cf. Hanover School Dist. v.

Barbour, 171 P.3d 223, 228 (Colo. 2007) (“the decision not to renew a teacher is a final

policy decision that can only be made at a public meeting,” so “any decision not to renew
 Barbour's contract made . . . in executive session could have no binding effect”).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Robert C. Marshall requests the Court enter a judgment in his

favor as follows:

(1) Enter an Order declaring that the serial gatherings of three or more members of the
DCSD Board of Education to discuss public business was in violation of the
Colorado Open Meetings Law;

(2) Enter an Order preliminarily and permanently enjoining the members of the DCSD
BOE from committing any further similar violations of the Collorado Open
Meetings Law, as they have indicated their intention of doing;

(3) Enter an Order declaring that the decision made by a majority of the BOE to
terminate the employment contract of Superintendent Corey Wise was not made in
compliance with the Colorado Open Meetings Law and is therefore null and void;

(4) Enter an Order commanding Defendants to pay Plaintiff the reasonable attorney
fees and costs he incurred in bringing this successful action to enforce his, and the
public’s, rights under the Colorado Open Meetings Law, and compelling the DCSD
BOE to comply therewith; and

(5) Such other and further relief as the Court deems just and proper.

VERIFICATION

I, Robert C. Marshall, under the penalty of perjury, certify that the factual statements contained
in this First Amended Complaint are true and correct to the best of my knowledge and belief.

Dated this 12th day of February, 2022.

s/ Robert C. Marshall (original signature on file)

Robert C. Marshall
Dated this 12th day of February, 2022.

Law Office of Steven D. Zansberg, L.L.C.

s/ Steven D. Zansberg
Steven D. Zansberg

COAKLEY, LLC
Eric R. Coakley
 CERTIFICATE OF SERVICE

I hereby certify that I served this First Amended Verified Complaint upon the following individuals
and entity via email on this 12th day of February, 2022:

Board of Education for the Douglas County School District

c/o General Counsel Mary Klimesh, Esq. ([email protected])

Michael Peterson ([email protected])

Rebecca Myers ([email protected])

Kaylee Winegar ([email protected])

Christy Williams ([email protected])

s/ Steven D. Zansberg
Steven D. Zansberg